Swaminathan vs R.V. Rajendran and Others

A.C. Arumugaperumal Adityan, J.—This revision has been directed against the order passed in I.A.. No. 7909 of 2008 in I.A. No. 12753

of 1988 in O.S. No. 7745 of 1985 on the file of III Assistant Judge, City Civil Court, Chennai.

Mr. R. Shanmugam, the learned Counsel appearing for the revision petitioner would vehemently contend that the first respondent R.V.

Rajendran had already filed an application before the trial Court in I.A. No. 141 of 2007 in O.S. No. 7745 of 1985 to implead himself in the array

of parties in O.S. No. 7745 of 1985 in which already a preliminary decree has been passed by the learned III Assistant Judge, City Civil Court,

Chennai. That application was dismissed by the III Assistant Judge, City Civil Court, Chennai. Against which, C.R.P.(NPD) No. 3937 of 2007

was preferred by the petitioner in I.A. No. 141 of 2007 in O.S. No. 7745 of 1985. After an elaborate discussion, this Court has dismissed the

said civil revision petition with an observation that since final decree proceeding in O.S. No. 7745 of 1985 was pending before the III Assistant

Judge, City Civil Court, Chennai, the said revision petitioner R.V. Rajendran can move before the trial Court wherein the final decree proceeding

was pending in O.S. No. 7745 of 1985 by way of an application to get himself impleaded, in lieu of the Judgment in A.S. No. 821 of 1988 of this

Court. Only on the basis of the said observation, the first respondent herein had filed I.A. No. 7909 of 2008 in I.A. No. 12753 of 1988 in O.S.

No. 7745 of 1985 under Order 1 Rule 10 and Section 151 of CPC. The learned III Assistant Judge, City Civil Court, Chennai, after meticulously

going through the order passed in C.R.P.(NPD) No. 3937 of 2007 dated 24.4.2008 of this Court, after coming to a conclusion that the revision

petitioner R.V. Rajendran in I.A. No. 7909 of 2008 is a necessary and proper party to the adjudication , had allowed the said application, which

order is now under challenge in this revision petition.

The learned Counsel appearing for the revision petitioner herein would contend that on the basis of the passing remarks in C.R.P.(NPD) No.

3937 of 2007, the trial Court has erred in allowing I.A. No. 7909 of 2008 filed by the first respondent (R.V. Rajendran) herein who is not a party

in O.S. No. 7745 of 1985. Even though, the first respondent R.V. Rajendran was arrayed as second defendant in O.S. No. 7745 of 1985 , he

was subsequently given up by the plaintiff therein. After passing of a preliminary decree in O.S. No. 7745 of 1985, the aggrieved party viz.,

Swaminathan (defendant) had preferred an appeal in A.S. No. 821 of 1988. At paragraph 17 of the Judgment in A.S. No. 821 of 1988(Division

Bench of this Court), there is a clear finding of the Division Bench of this Court as to the effect that the mother of the second defendant viz., Baby

Ammal/the mother of Rajendran ,first respondent herein along with the first defendant is entitled to inherit 1/2 share of Kannammal who became

entitled to 1/2 share in the suit property as an absolute owner as per Section 14(1) of Hindu Succession Act 1956.

This Court, in C.R.P.(NPD) No. 3937 of 2007, has observed that since the final decree proceedings in O.S. No. 7745 of 1985 in I.A. No.

12753 of 1988 was pending and that the petitioner instead of asking for a relief of restoring O.S. No. 7745 of 1985 to the file of III Assistant

Judge, City Civil Court, Chennai, after passing of a preliminary decree can vent out his grievance by way of filing an application for getting himself

impleaded in the final decree proceedings in I.A. No. 12753 of 1988 in O.S. No. 7745 of 1985 and had dismissed C.R.P.(NPD) No. 3937 of

2007 with an observation in the above lines.

At this juncture, the learned Counsel appearing for the revision petitioner Mr. R. Shanmugam, relying on a decision reported in G.K.

Govindarajulu v. R. Alamelu 2008(5) CTC 133 would contend that once a preliminary decree has been passed in a partition suit, another

preliminary decree cannot be passed in favour of the respondent herein in the final decree proceedings in I.A. No. 12753 of 1988 in O.S. No.

7745 of 1985. A careful reading of the above said ratio would go to show that the ratio decidendi laid in the above said ratio was that, when a suit

has been finally disposed of then there cannot be another final decree passed in the same suit. So the said ratio has no application to the present

facts of the case.

Whether the first respondent is entitled to a share or not is a point to be decided in the final decree passed in I.A. No. 12753 of 1988 in O.S.

No. 7745 of 1985. On the basis of the Judgment in A.S. No. 821 of 1988 alone, this Court has ordered earlier in CRP(NPD) No. 3937 of 2007

that the petitioner can file necessary application to get himself impleaded in I.A. No. 12753 of 1988 in O.S. No. 7745 of 1985 which has been

carried out and the learned trial Judge after coming to a conclusion that the first respondent is a necessary party to O.S. No. 7745 of 1985 has

allowed I.A. No. 7909 of 2008. Under such circumstances, I do not find any reason to interfere with the finding of the learned trial Judge in I.A.

No. 7909 of 2008 in I.A. No. 12753 of 1988 in O.S. No. 7745 of 1985 which does not warrant any interference from this Court.

In fine, this civil revision petition is dismissed. It is made clear that while disposing of I.A. No. 12753 of 1988 in O.S. No. 7745 of 1985, the

trial Court need not be carried away by any of the observations made in this revision petition. Further it is open to the revision petitioner to raise all

his objections in I.A. No. 12753 of 1988 in O.S. No. 7745 of 1985 before the learned trial Judge in the final decree proceedings i.e., in I.A. No.

12753 of 1988 in O.S. No. 7745 of 1985 on the file of III Assistant Judge, City Civil Court, Chennai. No costs. Consequently, connected M.P.

No. 1 of 2008 is also dismissed.